In a major victory for public access, the Supreme Court of the United States has declined to hear arguments from landowners who claimed that a New Mexico court ruling upholding the public’s right to access rivers and streams that flow over private property amounted to an impermissible government taking.

The supreme court on Monday denied a petition filed by Chama Troutstalkers, LLC and Z&T Cattle Co., LLC. The companies’ owners, who have ties to Texas, had asked the U.S. Supreme Court to review last year’s decision by the New Mexico Supreme Court upholding public access to rivers and streams.

The New Mexico Supreme Court issued a written decision on Sept. 1 reaffirming the longstanding right of New Mexicans to walk or wade on the streambeds of water that flows over privately owned lands for fishing or other recreation.

“We hold that the public has the right to recreate and fish in public waters and that this right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment of such right,” the New Mexico Supreme Court stated in its unanimous opinion.

The New Mexico Supreme Court ruling came in response to a legal challenge brought by the New Mexico Wildlife Federation, the Adobe Whitewater Club and the New Mexico Chapter of Backcountry Hunters & Anglers. The groups had challenged a regulation adopted by the New Mexico State Game Commission that went into effect in 2017 that purported to allow landowners to close streams over their properties.

Seth T. Cohen, a Santa Fe lawyer, is among the lawyers who represented the NMWF and other groups. Cohen said Monday that the supreme court’s denial of the landowners’ petition to review the state court ruling is a great outcome for all who enjoy recreating on New Mexico’s rivers.
“It preserves the New Mexico Supreme Court’s ruling affirming the public’s constitutional right to use our rivers for recreation,” Cohen said. “This should hopefully put an end to the efforts by a fortunate few to privatize New Mexico’s rivers.”

Jesse Deubel, executive director of the NMWF, said preserving the right of public access to public waters in New Mexico is vitally important. “New Mexico is a dry state and there’s increasing demand for recreation on our rivers and streams,” Deubel said. “The New Mexico Wildlife Federation and our allies won’t stand by and watch our public waters be fenced off to become private playgrounds exclusively for the wealthy.”

Deubel expressed appreciation for the work of Cohen, Santa Fe lawyer Gene Gallegos and the O’Melveny and Myers law firm in California. “Our lawyers did a tremendous service for the people of the state of New Mexico,” Deubel said. “Other states in the West have seen their own state governments stand up for the rights of citizens to use public waters, but in New Mexico the burden fell to our organizations. We very much appreciate all the work that our attorneys have done.”
In ruling for public stream access, the NM Supreme Court has emphasized that it wasn’t recognizing a new right, but rather restating its longstanding position. It noted in its ruling last year that it already had addressed the public’s right to access the waters of the state in its 1945 landmark case, State ex rel. State Game Commission v. Red River Valley Co.

In the 1945 case, the court recognized the public’s right to use streams and streambeds where they run through private property as long as the public doesn’t trespass across private land to access the waters, or trespass from the stream onto private land. The court noted that under the Indian, Spanish and Mexican law that governed New Mexico before statehood, everyone had the right to fish in streams. The game commission regulation purported to allow landowners to get certificates from the game commission that “non-navigable” rivers and streams that cross their private property were private water and closed to the public. The commission had granted five applications from out-of-state landowners to certify waters as “non-navigable” on New Mexico waterways, including stretches of the Rio Chama and Pecos River.

The New Mexico Supreme Court ruled that the game commission regulation and the “non-navigable” certificates the commission had issued were void because they violated the state constitution.

For more info:
New Mexico Wildlife Federation

Special thanks:
National Wildlife Federation